Opinion
INDEX NO. 500412/2015
06-06-2019
NADIYA PANKIV, AS ADMINISTRATOR OF THE ESTATE OF SHIRLEY PUGLIA, DECEASED, Plaintiff, v. DITMAS PARK REHABILITATION AND CARE CENTER, LLC, DITMAS PARK REHAB/CARE CENTER, Defendant.
NYSCEF DOC. NO. 79 At an IAS Term, Part 3 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 320 Jay Street, Brooklyn, New York, on the 6th day of June, 2019. PRESENT: HON. MICHELLE WESTON Justice. The following papers numbered 1 read herein:
| Papers Numbered | |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion andAffidavits (Affirmations) Annexed | 1 |
| Opposing Affidavits (Affirmations) | __________ |
| Reply Affidavits (Affirmations) | __________ |
| __________Affidavit (Affirmation) | __________ |
| Other Papers | __________ |
Upon the foregoing papers, and after oral arguments heard, plaintiff moves, in limine, for an order precluding defendants from referring to or introducing at trial evidence of (1) a prior accident involving an injury sustained by plaintiff's decedent following a trip and fall, and the medical care given for that injury, (2) subsequent care and negligent acts of separate alleged tortfeasors, which occurred approximately two years after decedent's discharge from defendants' facility, and (3) decedent's son's approximately 20-year-old conviction for possession of a controlled substance.
Initially, it should be noted that the Court will not consider defendant's written opposition to plaintiff's motion, nor will the Court consider defendant's motion in limine to preclude certain evidence at trial. At a conference held before this Court on May 21, 2019, the Court made clear that all in limine motions were to be made returnable by June 6, 2019. Defendant, however, failed to comply with this directive, and instead e-filed its Memorandum of Law in support of its motion to preclude on June 4, 2019, and e-filed its opposition to plaintiff's motion on June 5, 2019. Although the Court rejected defendant's belated attempt to provide courtesy copies of its filings in court on the return date, the Court nevertheless permitted defendant to oppose plaintiff's motion orally.
Rule B(7) of the Kings County Protocol for e-filed cases requires working copies of e-filed documents to be submitted for judicial review.
Plaintiff commenced this medical malpractice action on or about January 13, 2015, alleging, among other things, pain and suffering from decubitus ulcers she developed at defendant's facility. Plaintiff was admitted to defendant's facility on July 26, 2013. At the time, she suffered from amyotrophic lateral sclerosis (ALS) and required a ventillator to breathe. She remained at defendant's facility until August 28, 2013, following which she was admitted to Methodist Hospital, where her ulcers were treated. Approximately two years later, plaintiff was treated at a different facility, where she developed decubitus ulcers and later died from sepsis on September 27, 2015 - more than eight months after commencing this action. A note of issue was filed on December 12, 2017 and, on May 21, 2019, this case was referred to me for trial. Plaintiff now moves, in limine, to preclude defendant from introducing certain evidence at trial. Plaintiff's motion is decided as follows.
Plaintiff maintains that her injuries and treatment at defendant's facility are separate and unrelated to her injuries and treatment several years later at different facilities. --------
First, to the extent plaintiff asks the Court to preclude defendant from referring to or introducing evidence involving a prior slip and fall, defendant did not oppose plaintiff's request at oral argument and acknowledged that it did not expect to make any reference to the incident. Accordingly, that branch of plaintiff's motion is granted as unopposed.
Also granted is that branch of plaintiff's motion which seeks to preclude defendant from introducing evidence of plaintiff's decedent's son's prior conviction for criminal possession of a controlled substance. Although defendant contends that the prior conviction is relevant in assessing the son's credibility, the Court disagrees. The son's conviction is approximately twenty-years old, does not involve a crime of dishonesty, and any probative value it may have is far outweighed by its prejudicial effect (see Tripp v Williams, 39 Misc. 3d 318 [Sup. Ct. Kings Co. 2013]; see generally People v Sandoval, 34 NY2d 371 [1974]). Accordingly, defendant is precluded from making any reference to the son's prior conviction.
As for plaintiff's request to preclude defendant from adducing evidence regarding her subsequent care at different facilities, the Court concludes that defendant's request is premature. Although plaintiff contends that her claims in this case are unrelated to those asserted against other facilities in a separate, pending litigation, the Court concludes that the theories and facts introduced in this case will determine whether or not the proof at issue should be included or excluded. Accordingly, the Court denies that branch of plaintiff's motion at this time, without prejudice, and with leave to renew at trial.
Finally, to the extent defendant now seeks "trial authorizations" from plaintiff's decedent's medical providers following her treatment at defendant's facility, the Court denies defendant's request. Plaintiff's decedent died in 2015. Since then, there was a preliminary conference order, a compliance conference order, and several other orders, none of which indicate that defendant ever requested such records. Moreover, defendant never moved to vacate the note of issue -- which was filed over a year ago -- on the ground that such records were outstanding, nor did defendant move to compel the production of such records. Indeed, defendant had ample time before the filing of the note of issue to obtain these records and any necessary authorizations.
Accordingly, the Court grants those branches of plaintiff's motion which seek to preclude any reference to, or evidence of (1) plaintiff's decedent's involvement in a prior slip and fall, and (2) plaintiff's decedent's son's conviction of criminal possession of a controlled substance. That branch of plaintiff's motion which seeks to preclude any reference to or evidence of plaintiff's decedent's treatment and injuries at other facilities is denied, without prejudice, and with leave to renew at trial.
The foregoing constitutes the decision and order of the court. Anything not specifically granted herein is deemed denied. Plaintiff is directed to serve a copy of this decision and order on defendants.
ENTER,
/s/_________
J. S. C.